Thursday, June 30, 2005
The United Nations Office on Drugs and Crime has revealed that in 2003, illegal drugs comprised 0.9% of the world's gross domestic product. The retail value of illegal drugs on the market in 2003 eclipsed the GDP of 88% of the countries in the world. [Mark Godsey]
In Kentucky a program whereby those on parole who are believed to be particularly dangerous are returned to prison for violations such as missing curfew was criticized; most of those selected for participation are black. [Jack Chin]
Female members of a "timber gang" in India have resorted to stripping naked when the police pursue male members of the gang who illegally chop down trees in India's forests. Officials say the tactic is working: “It is proving tough to deal with these women,” Jharkhand forest official B.K. Singh said. “It has almost become a regular practice for them to strip.” Story from MSNBC.com . . .
Also in India, a crime reporter has been arrested for using information gained through his reporting job to go on a crime spree. Story from MSNBC.com . . . [Mark Godsey]
Wednesday, June 29, 2005
From a press release: In a decision announced June 23, the U.S. Supreme Court has agreed with WSU Law Professor David Moran’s argument in Halbert v. Michigan that a person who has pleaded guilty to a crime and seeks permission to appeal has a constitutional right to state-provided counsel. The ruling was 6-3. The opinion is available at http://www.supremecourtus.gov/opinions/04slipopinion.html
Professor Moran argued the case on April 25, 2005 before the highest court in the nation as an ACLU cooperating attorney. Since 1999 Michigan has been the only state with a law barring judges from appointing counsel for indigents who pleaded guilty. Other states were closely watching the case, and 17 other states had filed friend of the court briefs in support. “I’m very pleased that the Court has rejected Michigan’s attempt to gut the fundamental right to an attorney on a first appeal from a criminal conviction, a right that every American state, except Michigan, has scrupulously honored for than 40 years,” said Moran. According to the ACLU, over 90% of all felony convictions are obtained by guilty plea, and lack of counsel on appeal could mean errors in sentencing would remain uncorrected.
David Moran is currently Assistant Professor of Law at the Wayne State University Law School, a position he has held since 2000. He teaches a wide range of criminal law cases and evidence, and also serves as the faculty advisor for the School’s Moot Court. His students have awarded him “Teacher of the Year” honors six times, and he has been honored by both the Law School and the University for his superior teaching. Prior to joining the Law School, Moran worked as an assistant defender for the State Appellate Defender Office in Detroit. [Mark Godsey]
Tuesday, June 28, 2005
House v. Bell, 04-8990:
Summary of Ruling Below: In capital case in which circumstantial evidence was clearly sufficient to support habeas corpus petitioner's murder conviction, petitioner has not made sufficient showing of actual innocence that would permit him to revive his procedurally defaulted claims of ineffective assistance of counsel, because, although petitioner made colorable claim of actual innocence, his evidence, which raised questions about reliability of portions of trial testimony and manner in which physical evidence was handled or analyzed, did not satisfy test of Schlup v. Delo, 513 U.S. 298 (1995), which requires petitioner to show that it is more likely than not that no reasonable jury would have convicted him in light of his new evidence.
Question(s) Presented: (1) Did majority below err in applying this court's decision in Schlup v. Delo to hold that petitioner's compelling new evidence, though presenting at very least colorable claim of actual innocence, was as matter of law insufficient to excuse his failure to present that evidence before state courts merely because he had failed to negate each and every item of circumstantial evidence that had been offered against him at original trial? (2) What constitutes "truly persuasive showing of actual innocence" pursuant to Herrera v. Collins, 503 U.S. 390 (1993), sufficient to warrant freestanding habeas relief?
House v. Bell raises important issues about the how new DNA evidence of innocence impacts an inmates right to a new trial. CNN discussion here.
Rice v. Collins, 04-52
Ruling Below: (9th Cir., 365 F.3d 667)
Summary of Ruling Below: State court's determination that prosecutor did not exercise two peremptory strikes in racially discriminatory manner, without addressing substantial indications that prosecutor's race-neutral explanation for each strike was pretext for racially motivated discrimination, was objectively unreasonable determination of facts in light of evidence presented as well as objectively unreasonable application of clearly established federal law, and thus state court committed constitutional error that warrants grant of habeas corpus under 28 U.S.C. § 2254.
Question(s) Presented: Does 28 U.S.C. § 2254 allow federal habeas corpus court to reject presumption of correctness for state factfinding, and condemn state-court adjudication as unreasonable determination of facts, when rational factfinder could have determined facts as did state court?
It is black letter constitutional law. To prove a criminal offense, the prosecution must prove every element of the offense, by proof beyond a reasonable doubt, and the constitution entitles a defendant to confront and cross-examine all witnesses against him. Yet, for the past thirty years, state legislatures have quietly approved laws that cheat the constitution. By that I mean, that these laws fly, undetected, beneath the constitutional radar while violating fundamental constitutional rights.
Although other constitutional cheats abound, in this article I consider one archetypical cheat: statutes that permit state prosecutors to use hearsay state crime laboratory reports, in lieu of live witness testimony, to prove essential elements of a criminal case. These statutes convert the allegations of an uncross-examined state witness into proof beyond a reasonable doubt. I call these forensic proof statutes forensic ipse dixit statutes, because "a bare assertion resting on the authority of an individual" becomes, ipse dixit, an adjudicated fact. The forensic ipse dixit statutes deprive defendants of the right to confrontation and relieve the government of its burden of proof. Along the way, these statutes discourage vigorous defense advocacy, promote carelessness and fraud in crime laboratories, and increase the likelihood of wrongful convictions and sentences.
In Section I of this article, I provide an overview of the nationwide forensic ipse dixit phenomenon. In Section II, I address the unwarranted presumption of reliability that legislatures and courts often accord to forensic reports. In Sections III and IV, respectively, I discuss how the forensic ipse dixit statutes violate the Confrontation and Due Process clauses of the United States Constitution. In Section V, I offer observations about what constitutional cheating reveals about our criminal justice system.
Obtain article here. [Mark Godsey]
The case is Hudson v. Michigan, No. 04-1360, and the issue is described by BNA.com as "Whether "inevitable discovery" doctrine creates a per se exception to exclusionary rule for evidence seized after violation of "knock and announce" rule of the Fourth Amendment."
The case is being litigated by Wayne State CrimProf David Moran. He posted the following about the case on the crimprof list serve:
I have a [Supreme Court case] pending in Hudson v. Michigan, No. 04-1360, in which the issue is whether evidence found in a home after a 4th Amendment knock-and-announce violation should be suppressed or whether it should come in under the theory that the police would have "inevitably discovered" the same evidence if they had knocked and announced. This inevitable discovery argument has been explicitly accepted by the Michigan Supreme Court and the 7th Circuit and explicitly rejected by the 6th and 8th Circuits, the Arkansas Supreme Court and the Maryland Court of Appeals.
The government's inevitable discovery argument relies on language from Nix v. Williams that the police should not be placed in a "worse position" than they would have been in without the constitutional violation. But the Court has many times suppressed evidence and thereby put the
police in a worse position than they would have been had they not violated the Constitution. For example, in Katz, the Court observed that the FBI had ample probable cause to obtain a warrant to bug the telephone booth, but suppressed the evidence because the police did not obtain a warrant. Thus, the police were placed in a worse position than they would have been had they not committed the violation. There are many such cases in which evidence has been suppressed where the police could have, but did not, obtain a warrant.
My question to you folks is: can you think of cases in which the constitutional violation was not failure to get a warrant in which the Court placed the police in a worse position than they would have been had they not committed the violation? I've come up with a few, but I'm sure there must be lots more. And, more broadly, when is it correct to say that the deterrence rationale of the exclusionary rule necessarily requires that the police sometimes be put in a worse position than they would have been without the violation, notwithstanding the contrary statement in Nix?
Contact David Moran at email@example.com [Mark Godsey]
Monday, June 27, 2005
Douglas Berman, Joshua Dressler, and Alan Michaels, faculty Managing Editors of the Ohio State Journal of Criminal Law, report that room still exists for Commentaries and Reviews for the Spring 2006 issue. The Journal can consider submissions until space is filled or sometime in October,
whichever comes first.
Commentaries should be short (about 5000 words, light in footnotes). Reviews may be of recent books, criminal justice reports, or even of criminal justice issues arising in movies, television, and other cultural forums. Submissions should be sent to firstname.lastname@example.org. The editors may be contacted in advance with questions: email@example.com; firstname.lastname@example.org; or email@example.com. [Mark Godsey]
In Castle Rock, Colo. v. Gonzales, No. 04-278, the court held that a woman whose children were murdered by her estranged husband after municipal police failed to respond to her repeated pleas to enforce a restraining order against him, as state law required them to do, did not have a property interest protected by the Due Process Clause in having the police enforce the order. Therefore, the court ruled, the mother's 42 U.S.C. §1983 civil rights actions against the municipality was properly dismissed. Decision here.
In Bell v. Thompson, No. 04-514, the court decided that, assuming that Fed. R. App. P. 41 provides a court of appeals with authority to stay a mandate without issuing an order following the Supreme Court's denial of certiorari, the Sixth Circuit abused its discretion in withholding its mandate in this death penalty case for five months without a formal order after the Supreme Court had denied rehearing from the denial of the habeas petitioner's cert petition. Decision here. [Mark Godsey]
The trial for the alleged BTK Killer begins today, and observers are baffled by the defense thus far. No motions have been filed of any sort. Not to change venue in the highly publicized case, no motions to suppress, no motions for anything. Not even a detailed juror questionnaire. The court-appointed attorneys have yet to discuss their strategy (or lack thereof). Story . . . [Mark Godsey] Guilty plea here, including free video.